EXCLUSIVE: 'Destroy' streetcar memo, judge suggests

Sep. 12, 2013

A rendering of the proposed Cincinnati streetcar / Provided

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A judge has ordered Duke Energy to “destroy” or give back a city-produced memo the utility says contains critical information to determine whether the city or Duke will have to pay to relocate underground utility lines to build the streetcar.

Hamilton County Common Pleas Judge Carl Stich decided Wednesday the city inadvertently disclosed the two-page memo to Duke, and the document is to remain private under attorney-client privilege.

It remains uncertain what information is in the document, leaving streetcar opponents to wonder if the memo includes information about more cost overruns the city could incur on the controversial project.

As The Enquirer first reported last week, Duke said the memo was a source of “embarrassment” for the city. The city said it made a mistake by disclosing the document to Duke Energy and has fought since July to have the memo removed from the case.

Stich wrote that the city “may have been careless” in disclosing the document, but the memo “does not contain or reveal facts which Duke is entitled to discover in order to advance its legal arguments. (The memo) is nothing but an opinion.”

The city also has fought to keep the document from being released to the public. The Enquirer sought the document; the court provided the memo, but with virtually the entire text blacked out.

The only information revealed is that the memo was sent from then-assistant city solicitor Jonathan Brodhag to the City Manager on March 15, 2011. Brodhag, now working for a law firm in Charlotte, N.C., did not return a message seeking comment.

The streetcar project has faced several funding and political hurdles, and the city is trying to avoid another multi-million dollar cost overrun. Earlier this year, a $17.4 million cost overrun increased the project’s price tag to $133 million.

City Councilman Christopher Smitherman said his request for the memo has been denied by City Solicitor John Curp. Smitherman said he thinks the memo “most likely” discloses the cost of utility relocation will be higher than $15 million.

Other streetcar critics have suggested the memo revealed a city lawyer did not expect the city could win the case. But neither Smitherman nor other streetcar opponents have provided any evidence.

Smitherman also questioned whether the city administration was withholding the information because the streetcar has been a contentious issue in the mayoral race between Vice Mayor Roxanne Qualls and ex-councilman John Cranley. Qualls is a streetcar proponent and has said she’ll look to expand the 3.6-mile route if elected. Cranley has said he’ll stop the project if elected.

“We have an administration that thinks it’s OK to withhold information from us and the citizens of the city who are paying for the project,” Smitherman said. “It’s outrageous.”

Curp said City Council members are not considered the “client” in this case.

“Legally, the client is the municipal corporation,” Curp said in an email. “The City Manager is the Chief Executive Officer. The Council is the legislative branch.”

Duke attorney Matthew Fellerhoff told the court last week the memo contains critical information, the utility’s legal team had thoroughly reviewed the document and the information “can’t disappear from our memory.”

Duke filed a lawsuit against the city in February, and the parties have been battling for more than two years over who will pay to relocate utility lines along the route that would run from the riverfront through parts of Downtown and Over-the-Rhine.

The city says it has the $15 million in escrow from the sale of the Blue Ash airport. According to court documents, Duke has questioned whether the city has admitted being on the hook for relocating utilities by listing on its official website the city has the money set aside.

If the city loses the case, city taxpayers will be on the hook for paying to relocate the utility lines. If Duke loses, the utility could pass the buck onto its ratepayers from across Hamilton County and other local Ohio counties.

“The city looks forward to addressing the real issues of the case concerning the public’s ownership of the streets and whether Duke can double-charge Cincinnatians to maintain its monopoly on gas and electric distribution,” Curp said.

Said Duke spokesman Blair Schroeder: “Duke Energy is a strong community partner that looks out for our customers by keeping their rates among the lowest in the state. The central issue to this case (is) should the city of Cincinnati be responsible for covering the costs of their own utility project? We continue to maintain they should.”

Work on the streetcar began in July, when Duke started relocating utility lines.